Supreme Court of Ireland Decisions

1. This is an application on behalf of the Attorney General for an order granting liberty to the Attorney General to intervene in the instant proceedings and to be heard by this court on the hearing of the Notice Party’s appeal.

2. On the 9th June, 1999, the High Court (McGuinness J.) granted an order of certiorari quashing the order of the respondent dated 26th February, 1998, convicting the applicants/respondents (hereinafter referred to as the applicants) of an offence under s.24 of the Local Government (Planning and Development) Act, 1963 (hereinafter referred to as the Act of 1963), in respect of the unauthorised erection of an advertising hoarding. Against that decision the notice party has appealed. The prosecution of the applicants, which was heard by the respondent, in respect of the said offence, was brought by the notice party, Fingal County Council. The applicants submitted that the said offence was an indictable offence and that the notice party had no power, either statutory or at common law, to prosecute such offences and that the respondent had acted without and in excess of jurisdiction in convicting the applicants on foot of the notice party’s prosecution. The notice party opposed the applicants’ application for an order of certiorari on the grounds that it had statutory authority to commence the prosecution of indictable offences which could be tried summarily and, further, to continue the prosecution of such offences in the event of a summary disposal of same.

3. The High Court held that s.80 of the Act of 1963, as amended, did not specifically provide for a right to institute proceedings and bring them to the stage of a return for trial in relation to indictable offences under s.24 of the Act, as amended. The Court determined that the relevant statutory provisions must be interpreted strictly and that the notice party lacks the statutory authority to prosecute indictable offences. McGuinness J. held at pages 14-15:

4. The notice party, Fingal County Council, lodged an appeal against the judgment of the High Court on 7th September, 1999. The appeal includes the grounds that the learned

5. There was no application by or on behalf of the Attorney General to intervene or be heard in the High Court. This application by way of motion has been brought after the determination of the case in the High Court and pending the appeal in the Supreme Court. A date for the hearing of the said appeal has been fixed by this court.

6. The Attorney General has applied to intervene on the basis that:

7. On behalf of the applicants it was submitted that:

8. On the hearing of this motion counsel informed the court that Fingal County Council consented to the Attorney General being joined. Counsel for the Attorney General, Mr. Feichín McDonagh, S.C., submitted that there was a narrow area of dispute. It was not suggested by any party that the court did not have jurisdiction to join the Attorney General in proceedings. It was accepted that the Supreme Court has such jurisdiction. The issue for

9. In oral submissions counsel for the Attorney General stressed the fundamental importance to the proper administration of justice of the Attorney General being joined to argue the issue as to whether the County Council is entitled to prosecute offences in the District Court. In this case the accused had faced a charge, had opted for summary disposal, and the case was dealt with summarily. Therefore, the question for determination was whether the County Council might charge an applicant when the offence may be an indictable offence, even though it was ultimately dealt with summarily. Counsel for the Attorney General submitted that the Attorney General wished to be joined, that this is not a case between private litigants, that the Attorney General is a constitutional officer and that he has a special office. It was submitted that it was a matter of public importance. It was stated that the point of public importance was whether or not a corporate body may initiate a prosecution when an offence may be prosecuted, either summarily or on indictment, under an Act. In other words, whether bodies other than the Director of Public Prosecutions or the Attorney General may prosecute in accordance with an Act such as the statute in issue.

10. Under Order 15, Rule 13 of the Rules of the Superior Courts it is stated:

11. It may be that the Attorney General is not a party as envisaged in Order 15, Rule 13 who is “necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter.”

12. The Attorney General has a right to notice in certain circumstances. For example, if a question arises as to the validity of any law, having regard to the provisions of the Constitution, the moving party must serve notice on the Attorney General. Also, if a question arises as to the interpretation of the Constitution the court may direct notice be served on the Attorney General. These rules are to be found in the Rules of the Superior Courts, Order 60. Order 60 Rules 1 and 2 state:

13. However, neither the validity of a law nor a question as to the interpretation of the Constitution arises in this case. Consequently, this order is not relevant.

14. In relation to judicial review, Order 84 Rule 22(6) sets out a jurisdiction of the court on the hearing of the motion or summons. The court may order the serving of a notice or summons on any person whom the court is of opinion ought, whether under this rule or otherwise, to have been served. The said rule states:

15. Order 84 Rule 26(1) describes an even wider discretion for the court. The said rule states:

16. This broad discretion described applies in cases of judicial review. The action in this case is one of judicial review - the applicants have sought an order of certiorari quashing an order of the respondent.

17. Apart from the general rules relating to the joining of parties or the giving of notice of proceedings to persons, the Attorney General is a constitutional officer who has several roles which are relevant to any question of his intervening in or joining litigation.

18. The Attorney General is an independent constitutional officer of the State. In McLoughlin v. Minister for Social Welfare [1958] IR 1 Kingsmill Moore J. said at page 17:

19. It was submitted that the Attorney General has a general role entitling him to intervene where it is appropriate for the court to consider the view of the executive. It was submitted on behalf of the Attorney General that this role is similar to that of the Attorney-General in the United Kingdom. This role was described in Adams v. Adams (Attorney-General intervening) [1971] P. 188, where Sir Jocelyn Simon P. Observed at page 198:

20. However, the case before this court does not turn on an application of the Attorney General to present the view of the executive. Rather, the kernel of the case is as to an application of the Attorney General in his role as protecting the public interest.

21. The public interest evoked in this case is that of the prosecution of offences and the regulation of conduct having an impact on the environment. Most of the prosecuting functions of the Attorney General have been conferred on the Director of Public Prosecutions,

22. The Attorney General has a role in protecting the public interest. This was described by Kennedy C.J. in Moore v. Attorney-General for Saorstát Éireann [1930] IR 471. Also, he has the “authority to assert the rights of the public by action in the Courts”: Attorney-General and Minister for Justice v. Dublin United Tramways Co. [1939] IR 590, 597, per Maguire P. This action may also be a reaction.

23. The court was referred to the words of Professor James Casey in The Irish Law Officers at p.148, where he stated:

24. Reference was made by counsel to In Re Solicitors Act, 1954 [1960] IR 239 where Maguire

25. C.J. stated, at page 255:

26. The court was asked to consider another instance where the Attorney General intervened in the case. In Brady v. Cavan County Council [2000] 1 ILRM 81 Keane J. (as he then was) stated at page 84:

27. The Attorney General does not have a right entitling him to intervene in or to be joined to proceedings. The Attorney General has a right to apply to the court and it is for the court to determine. In many cases the public interest will be clear and the order in favour of the application of the Attorney General will follow. If there is a doubt as to the public interest as submitted by the Attorney General, the court, in exercising its discretion, should lean toward the application of the Attorney General enabling him or her to be joined in the proceedings.

28. In this case the primary public interest issue asserted relates to the matter of the prosecution of offences. The public interest in this matter is clear and I would make an order joining the Attorney General to the proceedings.

29. There is a final issue, the question of the joining of the Attorney General at the appeal stage of the proceedings. I am satisfied that the Attorney General may be joined to

30. The Attorney General has sought to intervene in proceedings where an appeal is pending before this court. In the said proceedings an issue in relation to the prosecution of offences in the District Court by the notice party arises for decision. The decision of the court may have important implications for prosecutions under similar legislation. There is a general public interest in the prosecution of offences. The Attorney General is an appropriate constitutional officer to be heard by the court having regard to his role representing the public interest. There is no bar to the joinder of a party to proceedings at an appeal stage. If the joinder of the Attorney General should add in any way to the costs of the appeal the court would have, as counsel for the Attorney General pointed out, discretion to deal with that as in any other aspect of the costs involved in the appeal. Consequently, I am satisfied that the application of the Attorney General should be granted and that the Attorney General should be joined as a notice party to the proceedings.

31. On the 9th June 1999 the High Court granted Certiorari quashing the Order of the Respondent of the 26th February 1998. By this Order, the Respondent had convicted both Applicants of an offence under Section 24 of the Local Government (Planning and

32. Development) Act 1963 in respect of the unauthorised erection of an advertising hoarding. The Notice Party was the Prosecutor in the District Court proceedings.

33. The point taken by the Applicants was that the offence of which they were convicted was an indictable offence so that the Notice Party had no power, inherent or conferred, to prosecute it and the Respondent had accordingly acted without or in excess of jurisdiction in convicting the Applicants. The Notice Party relied on the fact that the offence, though indictable, was also triable summarily in certain circumstances. Therefore, the Notice Party claimed, it had power to commence the prosecution and to continue it in the event that it was being disposed of summarily.

34. The High Court in reaching a decision in favour of the Applicant construed a number of statutory provisions and placed emphasis on the judgment of this Court in Cumann Lúthchleas Gael Teoranta v. Judge Windle [1994] 1 IR 525. The Notice Party appealed to this Court from the judgment and Order of the High Court by notice of appeal dated the 7th September 1999.

35. There is now before the Court the Attorney General’s Notice of Motion dated the 21st February 2000 seeking an Order granting him liberty to intervene in the appeal, and certain ancillary Orders. This motion is supported by an affidavit of Ann Spain. She avers that the judgment of the High Court has implications for the prosecution of offences under a range of legislation. She says that certain cases have been dismissed by the District Court on the basis of the High Court judgment in this case. Accordingly she contends that the issues raised in

36. In addition to the pleadings, both sides have filed very useful written submissions. The Attorney General claims that the case affects the general public interest in the prosecution of offences, and the general public interest in the protection of the environment. He says that much legislation in this area has provided for summary prosecution by relevant statutory authorities. It is contended that the Attorney General is an appropriate person to be heard

37. In reply, the Applicant points out that no relief of any sort is claimed as against the Attorney General, and that he is not a party directly affected by the proceedings. They also point out that at no stage of the judicial review proceedings did the High Court think it fit to regard the Attorney General as a

38. There is a broader provision of Order 84, relating to judicial review proceedings. At Rule 22 (6) it is provided that the Court shall have power to direct the service of the proceedings on any person ought to have been served. At Rule 26(1) the Court is empowered to hear

39. No direction was made under either of those rules, nor was any such direction sought, in the High Court. It may be that the present application might be treated as one under Order 84 Rule 26(1). If so it will be for the Attorney General to satisfy the Court that he is a proper person to be heard and that he should be heard at this stage not having sought to be heard in the High Court.

40. It does not appear to me that Order 60, relating to the giving of notice to the Attorney General, where questions as to the interpretation of the Constitution arise, has any relevance to this application. This rules was not relied upon in argument by Mr McDonagh.

41. The substantive point argued on behalf of the Attorney General was advanced under this heading and was expressed as follows in the Attorney’s written submissions:

42. It is clear from this formulation of the case that it is as representative of the executive on what is said to be a point of general public concern, and not in any other more independent capacity, that the Attorney wishes to intervene, and that he claims to be entitled to do so ex officio.

43. On this aspect, reliance was placed on a citation from Professor James Casey’s distinguished work “The Irish Law Officers” (1996). At page 148 the learned author said:

44. The only authority cited for the proposition set out in the second sentence of this extract is Moore v Attorney General [1930] IR 471 . This case is undoubtedly a locus classicus of authority on the powers and functions of the Attorney General of Saorstát Éireann and is of great relevance as to the powers and functions of his successor under the Constitution. Moreover, the principal judgment, that of Kennedy C.J., is of particular authority since the learned Chief Justice had been Law Officer of the Provisional Government from 1921-22 and subsequently the first Attorney General of Saorstát Éireann. He had prepared the Ministers and Secretaries Bill which was enacted in 1924 and which defined the functions of the latter office. As a member of the Dáil, he managed its passage through the House. But for all its high authority, neither the judgment of Kennedy C.J. nor anything else in Moore’s case seems to me to support the proposition contended for.

45. In that case, the Plaintiff’s claim to be entitled to a several fishery in the tidal portion of the River Erne. The Defendants were the Attorney General and 42 individuals, described as the “Special Defendants” . These 42 persons denied the existence of a several fishery and stated they were entitled to enter on the waters in question as members of the public. They said that if the Crown had created a several fishery in the relevant waters, it had not been entitled to do so.

46. The Plaintiffs were successful in the High Court and the Special Defendants appealed the entire Order. The Attorney General appealed only the portion of the Order granting costs against him. The Plaintiffs raised a preliminary objection to the effect that it was not competent for the Special Defendants to appeal the portion of the Order establishing the Plaintiffs title when the Attorney General had not appealed it.

47. The Supreme Court upheld this objection on the basis that the Attorney General alone could be heard to make any claim on behalf of the State or community of citizens of the Irish Free State. At page 499 Kennedy C.J. said:

48. A similar observation could be made about the English case cited, Adams v Adams .

49. Apart from the fact that it is obviously not a binding authority, that case related to a question of high public policy namely whether the English Courts should recognise a divorce decree pronounced by a Judge of the High Court of Rhodesia who had been appointed after the Rhodesian Governments Unilateral Declaration of Independence in 1965. The case is certainly authority for the proposition that, in the United Kingdom, the Attorney General has a right of intervention:

50. As Professor Casey later says, modern Irish law knows nothing of “the prerogatives of the Crown” . The public policy in question in Adams case was the high political question of whether a State which had unlawfully asserted its independence was entitled to British recognition of a decree of a subsequently appointed Judge. This, indeed, is public policy in its highest and most specific sense. It can have no bearing on the present case which turns on the interpretation of a number of statutory provisions. So obvious indeed was the executives interest in the issue in Adams that the Petitioner’s solicitor had notified the Attorney General of the institution of proceedings. In this jurisdiction, the location of questions of international relations within the area of high public policy is confirmed by the provisions of Article 29.4.1. of the Constitution.

51. Another case on which the Attorney General relies is In Re Solicitors Act, 1954 [1960] IR 239 . Reliance is placed on the single sentence of Maguire C.J.:

52. In that case, Maguire C.J. was sitting as a High Court Judge hearing an appeal against a decision of the Law Society striking off two solicitors, as they had power to do under the

53. It seems to me that the single sentence relied upon, taken out of context, is not fully representative of the judgment. The full text makes it clear that the Attorney’s presence in the case arose under Order 60, because a challenge to the validity of portion of the 1954 Act was made. The case cannot be regarded as authority for the proposition that the Attorney is entitled to participate in other circumstances.

54. Order 60 of the Rules of the Superior Courts, requiring notice to be given to the Attorney General where a question of the interpretation of the Constitution arises has already been referred to. Moreover, this Court has recently dealt with a case involving the Family Law Act 1995. Section 29 of that Act permits a Court in certain circumstances to make declarations in relation to the validity of marriages, divorces, annulments and legal

55. These provisions are similar to those contained in the Matrimonial Causes Acts 1857 to 1873. These Statutes never applied in this jurisdiction and were repealed in the United Kingdom in 1925. They are also similar in certain respects to the Legitimacy Declaration (Ireland) Act, 31 Victoria, Chapter 20. The relevance of these provisions, current and repealed, to the present issue is that they are examples of specific situations where the Attorney General must, or may, be notified of proceedings and perform certain functions in relation to them. The provision of a specific statutory entitlement for the Attorney to be added as a party, or to make submissions, would appear to be redundant if he had a general right to do either of these things.

56. In this case the Attorney General seeks to intervene in the proceedings in this Court, not having done so in the High Court. It is submitted that there is a jurisdiction to do this and

57. In this connection, reliance is also placed on the case of Brady v Cavan Counts Council [2000] 1 ILRM 81. In the Attorney General’s written submissions reliance is placed on the following extract from the judgment of Keane J. (as he then was):-

58. This passage occurs at the beginning of the judgment, on page 84 of the Report. At page 88 the position is further clarified. Brady was a case where the Applicant sought an Order of Mandamus compelling the County Council to repair a particular road. The Council

59. For the reasons set out above I do not accept the submission of the Attorney General that he has “an entitlement” to intervene in any proceedings he wishes, where he considers that issues of general public concern arise or that the Court should consider the views of the executive. None of the cases cited establish any such general and unqualified entitlement. In particular I am satisfied that the very broad statement in Professor Casey’s excellent work, quoted above, goes much too far and that Moore’s case does not support the proposition for which it is cited.

60. But that does not conclude the matter. Although the Attorney General has not in my view any entitlement as of right to intervene and be heard in the present proceedings he has applied to do so. That is something which the Court should consider very seriously. The Court has a jurisdiction into a discretion to allow a party to be joined in the proceedings even at the appeal stage where this is considered to be necessary in the interest of justice and where there is no specific rule of law excluding the additional parties at that stage of the proceedings.

61. Such was the position in O’Keeffe v An Bord Pleanála where, as noted above, Radio Tara Limited was joined as a party by this Court for the purpose of the appeal. There, this Court concluded:

62. Apart from cases in which there is specific provision in law or in the Rules of Court for the joinder of the Attorney General, he may have sufficient interest to warrant a Court, in the exercise of its discretion, allowing him to be joined as a party. In certain circumstances it may be appropriate that he be invited to intervene as amicus curiae. Indeed, in Byrne v Ireland [1972] IR 241 the Attorney General was a party but he appeared also as amicus curiae. No doubt this was to signify a broader and less partisan attitude to the case, in addition to his attitude as a party.

63. The Attorney General is a constitutional office holder with particular functions entrusted to him by the Constitution in respect of the prosecution of offences. Even though most of the actual powers of prosecution are, pursuant to Statute, exercised by the D.P.P., the Attorney by virtue of his constitutional position maintains a legitimate interest in the law and practice in this area.

64. In this case legal issues arise concerning the conduct of a prosecution by a Local Authority in relation to an offence which may be tried summarily or on indictment. In my view there is clearly a legitimate interest in the outcome of the proceedings, with which the Attorney General is legitimately concerned.

65. In the circumstances I am of the opinion that the Attorney General should be joined as a party to these proceedings for the purposes of the appeal. In my view it is appropriate,

66. I also consider that, in most circumstances at least, the Attorney should confine himself to the issues raised by the facts and pleadings in the particular case. I do not think he is entitled to have a moot point decided even if it is close to the facts of the case in which he intervenes. For example, the present case was one where the Defendant in the original prosecution opted for summary disposal of the case against him. I do not think the Attorney would be entitled to have authoritatively determined what the position would have been if the case were dealt with on indictment. A determination of that issue must await a case in which a party opts for trial on indictment, or has it thrust upon him, and accordingly has locus standi to argue it.

67. I would permit the joinder of the Attorney in the circumstances of this case.